Throughout The Universe, In Perpetuity: Why I Don’t Sign Copyright-Grabbing Photo Contracts

I was recently interviewed by Andrew McMillen for a story that was published on The Vine about the photo release forms that photographers have to sign, mainly at the festivals and the larger stadium/arena gigs but increasingly at much smaller shows:

“I didn’t sign either contract,” says Brisbane-based photographer Justin Edwards, who was covering the festival for TheVine.com.au, in reference to the Tool and Rammstein photo contracts. “The Rammstein one I was debating about doing, because you still own the photos, but they want to use them on their website. And you think, ‘Well, you’re second on the bill, and you’re getting paid an awful lot of money; I don’t really want to give you something for nothing’. But it wasn’t as bad as Tool’s contract. There’s no way I’d sign that.

“Some people, like Tony Mott, say that if they don’t get a copy and they don’t have a lawyer present, then it’s not a valid contract,” he continues, “but I’ve always taken [the view] that it is, because you don’t need that for a contract to be legally binding. It’s a matter of putting your name to something that, in the future, might come back to you. Especially now, because they’re asking for more information [on the contracts]. You used to just sign it, put your name and who you were photographing for. Now they want your email address and phone number. I don’t do [music photography] for money, but it’s the principle of the thing. It’s almost like it’s them, as an artist, being disrespectful to you. And you think, ‘Screw you; if that’s your attitude, I’m not interested in photographing you’.”

I’ve walked away from photographing a number of bands over the last couple years, including Queens Of The Stone Age, Carol King, Cheap Trick, Peter Hook and Tool, because I’ve suddenly been presented with a contract they want me to sign which assigns copyright of the photos I take over to the band. If I sign, they own my photos. If I know in advance that an act has a rights grabbing contract (Foo Fighters, Stone Temple Pilots, Coldplay, Muse, KISS, Stevie Wonder, The Cult etc) I don’t request to cover the show. What can I say? I have principles and I like to stick to them, even if it means missing out on getting paid to photograph a gig.

It’s highly unlikely at the moment that a band is going to demand their photos, although it’s not completely unheard of. However, the argument isn’t about whether Foo Fighters or Stone Temple Pilots are going to come knocking demanding that you provide them with copies of their photos but the much wider implications.

If you go on any music photography forum and ask when the “First Three, No Flash” rule came about, you’ll get at least a dozen different bands who were allegedly the first band to bring it in and just as many different reasons for why it was brought it. It was Led Zeppelin, it was photographers fighting in the pit, it was Blondie, it was not wanting photos showing her makeup running when she got sweaty, it was Eric Clapton, it was Bruce Springsteen, it was Rush, it was The Rolling Stones. No one can even agree on the year when it was first used. Now it’s industry standard practice, even though no is quite sure why they’re doing it – a classic case of doing something because that’s the way it’s always been done.

I’m not sure if I’ve ever seen it asked, but following on from “first three, no flash”, I’d say it’s extremely unlikely that anyone would be able to pinpoint the first time a photo release was used or the first time a copyright-grabbing contract was used and who the bands were.

Once there was no “three songs, no flash” rule, now it’s industry standard in all but the small, local shows. Once there were no releases. Once there were no copyright-grabbing contracts. In the last couple of years there has been a noticeable increase in photo release contracts and an increased erosion of photographers’ rights. I’ve experienced this first hand. The Zoo in Brisbane, probably my favourite venue in the city, used to be a camera-friendly place and you’d never see a contract from the bands they put on. Now you can only take a camera in if you’ve been approved and accredited. The first time I ever had to sign a photo release there really took me by surprise, partly because I’d been photographing bands there regularly for over two-and-a-half years without even a sniff of a contract, partly because it was for Amanda Palmer, who I’d always heard was very photographer-friendly. Fast forward a few years and I think I’ve had two or three contracts to sign in the last half a dozen gigs I’ve photographed at The Zoo. These aren’t massive, high profile bands but bands like The Hold Steady and The New Pornographers; bands with but loyal, dedicated, but moderately sized fanbases, much more your average band than global superstars.

The contracts I used to see would to generally put into writing that you agreed to the “first three, no flash” and that the photos weren’t to be used for commercial purposes (e.g. you couldn’t print up your own T-shirts or calendars etc and sell them) and maybe some safety issue information (you photograph at your own risk, follow security’s instructions at all times, etc). Now the clauses are much more complex and onerous, often stipulating in great detail what you can and can’t use the photos for and how they have to be used. It’s not uncommon for contracts to specify that the photos can only be used once and only in the publication you’re photographing for and also put time limits on the use of the photos (typically something like within seven days for a newspaper, 30 days for a magazine). Laughably, some photo release contracts are now inserting clauses that prevent you from the details of the contract public, including publicising whether they are copyright-grabbing (although it’s a ludicrous situation where you’re only bound by the terms of the contract if you sign and are free to tell anyone you like about the nasty clauses if you don’t sign). Whereas once photo release forms were reasonable and their conditions understandable, they have become less so over time.

Based on all this, it’s clear that much like “first three, no flash” copyright-grabbing photo contracts will become ‘industry standard’. It might take five, 10, maybe even 20 years, but eventually it will become a ‘standard’ clause in photo release forms. The practice is becoming more and more widespread, it will happen.

And once it does happen, where will it go after that? To me it’s obvious. If you sign a copyright-grabbing contract, instead of being escorted out of the venue after three songs, as happens now at the big shows, you will be escorted by the band’s representative to a laptop and told to download a copy of the photographs you’ve just taken onto the hard drive. [I wouldn’t put ideas into people’s heads if I were you, Justin – Ed]

As ridiculous as it sounds, why wouldn’t they? They’re their photos, not yours. They own them, not you. They’re just taking their property, and if you signed that contract you’re powerless to stop them. What are you going to do? Refuse? Just walk out? At best you’ll be blacklisted from shooting any more shows through that promoter/act’s management. Legally you’ve got someone else’s property and they’ve got the bit of paper that you’ve signed saying so. The only surprise is that they don’t already do it and if they’re putting a rights-grabbing clause in their release form they’re crazy not to be doing it. I know that if I was managing a band, had a copyright-grabbing clause that was in my photo release, I would be milking it for everything its worth: the possibilities to gain serious financial gain from it are so massive I’m not sure if managers who use such a condition in their contract know what they’re getting when they get photographers to sign away their rights. Eventually they will realise. One manager will start and others will follow.

The short-term gains. You could be really savvy and put some effort in. You could do some advance research, you know what photographers are going to sign their copyright away, you could check out their internet portfolios (any photographer who doesn’t have some sort of online portfolio isn’t worth the time of day) and decide what photographer(s) is going to give you the best work. You make them download their photos after the first three songs before any of the other photographers, preferable on a second laptop, then you review them, pick the best few and get them printed out in the next hour or so before the end of the concert and have a few available at the merch desk for the audience to see after the show. You could be really on the ball, get a few printed out and get the band to sign a few in the few minutes they’re off stage before the encore. Photos of the gig, THAT very gig, signed by the band, premium merchandise at a premium price. Alternatively, you just have a few printed from previous show if you can’t manage to print out any from that night’s show, and you can at least advertise them at the merch desk as being for sale direct from the band’s website, even give out flyers as everyone is leaving. It isn’t hard to set-up an online gallery with online purchases; they are companies you can easily do this through.

In the medium term there are, of course, the usual avenues for photos; CD and DVD artwork, books, calendars, T-shirts. As well as signing over copyright, these contracts generally also sign over moral rights. This means that they don’t have to even credit you; they could use a load of your photos in a book or a calendar and they don’t even have to give you a single credit as having taken the photos they’ve used. In signing over your rights, you don’t have any say in what they use them for, they don’t have to ask you, they don’t have to publicise your name. You don’t even get to tell your friends, “Look, I took this photo and there’s my name to prove it”.

And then there’s the long-term, the final legacy of any working professional photographer, their retirement; their photographic archive. Tony Mott recently had a photo exhibition in Brisbane where he was selling limited edition prints, numbered and signed by himself for between $400 and $1,000 depending on size. Limited editions are the art industry’s great rip-off as there’s no limit to the number in any series (although obviously the smaller the print run, the rarer it will be, the more you can charge for it and the more it will be worth in the future) and you can change the dimensions ever so slightly to create a whole new edition. Tony Mott’s prints at this exhibition were in fairly small editions of 25 or 50. Let’s say in 20 years time the Foo Fighters have their own touring exhibition and print up the best 40 photos, in a limited edition of 100 for each and have them at four sizes, have 10 of the 40 photos at each size, and charge $400, $600, $750 and $1,000 depending on the size (I think this was the pricing used by Tony Mott), and each is numbered and signed by the whole band. Now do the maths:

Size

Number of Photos

Limited Edition

Price

Total

Poster

10

100

$1,000

$1,000,000

Large

10

100

$750

$750,000

Medium

10

100

$600

$600,000

Small

10

100

$400

$400,000

$2,750,000

Assuming they sold all the photos they could make $2.75m for themselves. And that’s just one print run, they could change the size of the print and do another limited edition of 100 for each photo, and basically keep going. Easy money isn’t it? Photographers who are signing away their copyright are giving this away to the band for free, and not even for the thanks of a credit. Not only are they giving the band a license to print money, they’re also preventing themselves from ever being able to profit from their own work in the long-term future.

Maybe it’s all too late and we’re far too far down the path to copyright-grabbing contracts becoming inevitable. I like to think not, the practices of Norwegian and German photographers, where there is more of a united front, both from photographers and their commissioning editors, who consider a universal boycott approach works as they say they have fewer restrictions than other countries gives me some hope.

I used to think that as someone who does this for a hobby and has little desire (most of the time) to be a full-time photographer, I had a duty of care to professional photographers. The reality is that people who call themselves professional photographers are the worst of the lot; a sniff of money, however small, and they’ll sign anything that’s put in front of them.

So these days there are two primary reasons why I won’t sign rights-grabbing contracts. The first is a duty of care to the music photographers who come after me. I started photographing bands by taking my camera along to small, local shows and built my way up to photographing better known bands at larger venues and high profile festivals. I want photographers in the future to have the same opportunities as I have been afforded, not to end up finding it hard to do something they have a passion for without having to do it under a legacy of debatable conditions left to them by their predecessors. If copyright grabs are the future, thanks to the actions of the current crop of music photographers, then at least I didn’t endorse it and did what I could to prevent it happening by walking away from anyone who wanted me to sign over my rights.

Following on from this, the second reason is that I own everything I photograph; they’re my photos and no one can ever take them away from me. Sure, if you sign away your rights you can tell people about all the amazing photos you took of the band, you can out them up on your website or on Facebook, all your friends can tell you what an amazing photographer you are, but no matter how hard you try to convince yourself that it doesn’t matter, they’re not your photos, you don’t own them and never will, there’s a bit of paper with your name and signature on it saying that you gave them away for free.

Justin Edwards is a regular contributor to Brisbane's weekly street press magazine, Rave and his photographs have also been published in Rolling Stone, Plan B magazine, Mess+Noise, the Herald-Sun and Blunt, as well as on numerous music and band websites.

I zoned out about halfway through… I was a bit confused by a photograper once as I paid them to photograph my fashion collection… then I found out I didn’t own the copyright and could only use the photos for limited things. Seemed like a rip off. I think the photographer and the person who commissions the photos should both have free use of them. Otherwise someone’s getting had. Can’t you just agree royalties on use of the photos instead?

Everett TrueApril 5, 2011 at 10:59 am

Hannah, in a live concert situation, the band do not usually commission the photography. That might be some of the problem …

AlexApril 5, 2011 at 11:04 am

Thanks for putting this piece up Justin. As an even smaller fish in the pond, I’ve signed about five of these in my time and mainly because I was worried about getting in trouble with my editor. I knew every time though that it was a bad idea for me to be doing this.

One thing that annoys the hell out me is that I have an amazing photo of my all time favourite drummer printed and framed on my wall at home that technically, I can not show anyone else. This disappoints me because there was no way I wasn’t going to shoot a show that meant a lot to me (personally) but as soon as I signed the stupid contract I knew what was going to happen…

I do wonder though if there is any legal angle in not providing all parties with a copy of the contract? Would it undermine the validity of a contract in a legal context when one of the parties doesn’t have a copy of the contract that they can abide by?

AlexApril 5, 2011 at 1:11 pm

I’m already wondering how many times I’ll comment here about this but…

I have often pondered on how many of the bands who have contracts even know about them? Is it just the Chugg and Co. touring companies and office dwelling manegment or are the actual members of the band, say Mogwai, all like “No, they’re photos of us! we want owenership”?

I ask because I can see both side of the coin on this topic. Someone associated with the band has agreed to let you come in and take photos on the basis of promotion, not nessesarily personal profit. There is never a spoken deliniation of the ongoing purpose of the photos (with the bigger bands usually). In some ways photographers do use bands to create careers as photographers.

That said, like a model gives consent to photograph for artistic purposes. You have to wonder if the band is giving the same kind of consent? In the case of some bands, I’d have to say that the answer might be no.

I’m someone, who has over the last 12 months, has been on stage and had photographers stroll in, take a heap of photos of me and off they trot. The only way I’m going to ever see any of those photos is if I trawl the internet. In some ways, I want a say on what those photographers do with those photos.

I’m not saying contracts, but I do understand the artist wanting a say in the process. Preferably beforehand… preferably over a beer 😉

Everett TrueApril 5, 2011 at 1:30 pm

As I understand it, a reason cited for the “three songs, no flash” rule is that having a ton of flashes going off throughout a performance – or a series of burly strapping photographers burdened down with a ton of cameras standing right in front of the crowd – can be bloody annoying for the folk who paid entrance.

I suspect this reasoning is disingenuous. But having had closer proximity to big name tour managers than many, I believe that this is a factor (or perceived to be a factor, which amounts to pretty much the same thing) for many bands. Maybe Debbie Harry got fed up with blokes trying to photograph up her skirt, who knows?

There again, in these days of ‘everyone is a photographer’ (see above comment) and the fact there are a thousand fucking websites and free papers clamoring to gain free entrance … is this reasoning so disingenuous? Surprised they don’t frisk the whole lot of us for mobiles while they’re at it, some of these venues.

But fuck it. Take ATP Mount Buller a few years back. One song only, and no flash, for Nick Cave. Don’t fucking allow photographers if you hate them that much, you twat. (Incidentally, the photographer who was covering the show with me for Mojo – an old MM sparring partner – easily circumnavigated that rule, by shooting the entire soundcheck. Man, was he smug … until it transpired Nick was wearing an entirely different shirt for the performance, and it took place at night.)

Everett TrueApril 5, 2011 at 1:41 pm

I recall one time being sent to interview The Spice Girls in Spain, or somewhere on the continent. (OK. I sent myself. I was the boss.) The photographer was asked to sign this ridiculous 12-page contract before being allowed anywhere near the front of the stage to shoot their live concert. So our art editor (who was also on the trip: ah, gotta love corporate magazines sometimes) slung a camera over my neck, handed me the photo pass and told me to get my ass down into the photo pit. I’d signed no contract!

Shame all the photos I took were entirely unusable, mainly because I was trying my damnedest NOT to get a shot of Geri’s knickers.

Justin, great article. As I commented on Andrew’s original article, Mott’s position is risky. Particularly more so now that he may be profiting from work he has signed away to others. Lawyer present or not, getting a copy or not, he still made a contractual arrangement.

In a past life, as a member of a local band that had been photographed, some photographers tried to sell us their live photos – and sold (or attempted to) prints via their website. We didn’t even like the photos. We hadn’t given them permission to photograph us, it all felt like a dirty business to us.

Phil WilsonApril 5, 2011 at 9:05 pm

Some interesting points in there, Justin.

I do feel a little bit ambivalent about this issue. Now, presumably the reason you started out doing small local gigs and have now progressed to major acts is not to do with “art”, but commerce: if you were simply interested in taking photographs, you would still be doing the small bands. So you have a commercial interest in the photographs. I believe that somebody whose image is being used for commercial purposes should also have some sort of rights towards that image. Certainly not 100%, as these contracts seem to stipulate, but some rights…

I know if I find a good live photo of my band, that I like to be able to copy it and use it on my website/Myspace/Facebook. It then just feels a little bit weird having to get someone else’s permission to use an image of myself…

The bands have no rights over the photos and should be grateful for the publicity. If they are good at what they do, they will do such a good show that their pics will look good. Or they can check out portfolio of photographer prior to allowing them in. There’s a lot to be said for building rapport- sometimes this works more wonders than a contract. Or perhaps photographers should pay MORE for entry to the gig than others once the band is commercially viable. That’s like buying a share in the band’s success in order to sell the photos and make money off them. That would be a more traditional basic business model- pay for stock, then sell it at a profit. This would only happen after the tipping point of a band’s success and it would be up to the photographer as a business person to assess the viability of photographing the event. At least then they keep the photos rights to their work and the band gets something out of it financially rather than having someone else ride their coat tails to riches. It should be win win whatever the score.

“The bands have no rights over the photos and should be grateful for the publicity. ” Just like bloggers should be grateful for the publicity when their work gets copied and republished, yeah? *rollseyes*

Although I think Everyone Is A Photographer has been a knock on effect of the digital age, I don’t think the contracts have been brought about because of that. I know a few of the contracts I’ve seen have specified that if you’re using film (and not digital files) you have to supply them with a copy of the negatives (a ridiculously expensive process and a service I’d think would be getting harder to find). It’s driven by money, pure and simple. Plus I think the full worth of images has only been realised in the last few years as ‘popular music’ (as in the rock n roll variety) has matured and reached an age where there is value in it as an art form (of sorts) and a market to go with it.

I also published on my own blog – http://www.notaphoto.com/throughout-the-universe-in-perpetuity-why-i-dont-sign-copyright-grabbing-photo-contracts – and Peter Hook (Joy Division/New Order) commented on it last night to say that it’s to stop bands being held to ransom if they want to use photos that were taken of them. He didn’t name names of prices but (a) I’d be interested what they consider too much to pay and (b) it’s a free market, if the price is too high, you go somewhere else. Having contracts like this mean there’s no option for negotiation of price.

No one’s being had. It’s how most industries work, especially creative ones. Photography prices on licensing of use based on a whole load of factors as to size of image/type of usage/time of use/exclusivity/circulation.

If I buy something from your fashion collection can I take it apart, use the pattern, source similar material and start producing my own collection? I mean I paid for it, I can do what I want with it. That’s how it works isn’t it?

It’s no different from buying a CD or a DVD. There are conditions on what you can/can’t do with it

Most editors have been fine about it and understand, even to the point of emailing the contract and saying if they were me they wouldn’t sign it. And when I got yelled at by the dick from Frontier when I walked out on photographing Queens Of The Stone Age at The Arena Rave sent an email to the promoter to complain about how I’d been treated, which was really good of them.

Generally the tact just to ignore the contracts and do what you want, the chances they’ll come back to you at the moment is probably tiny. One of the few times I’ve heard about a manager coming back and telling a photographer to remove photos from their website/Flickr account was John Butler’s manager. It just goes to prove you can’t trust a hippy.

The argument about not getting a copy/not having your lawyer witness (aka The Tony Mott defence) doesn’t hold any legal clout. But like I’ve tried to say, it’s more about where this is all going in the future, rather than how it is now. It’s gotten more restrictive, it’s only going one way.

The question as to whether the bands know about the contracts has often been asked and Peter Hook replying on my blog suggests that some of them do know about them and say why they have them. All the copyright grabbing contracts I’ve seen have been from the band management rather than the promoter. I can remember a few years ago someone from Frontier saying their contracts weren’t their fault and were because the bands asked for them. i’m guessing that the promoters just put them in the contract document and the bands management signed off on the contracts, including the photo releases, whether they’d really studied them or not. Hence my surprise at having to sign one for Amanda Palmer who I’d heard was really friendly to photographers.

On the subject I debated about whether to sign Secret Service’s contract for that last Powderfinger show. One clause said if they asked you had to provide them with photos. I signed because I decided the way it was written didn’t confirm FOR FREE. If they asked I would be only too happy to provide them with a photo, it’ll cost $X. But they had a dodgy clause saying (basically) if they didn’t like a photo that had been published it had to be removed. Easy enough to do for web but it also means if it was in print you would have to potentially recall all copies of the photo. Plus, to me, having final say over a published photo seemed to be really against the freedom of the press.

Basically, consent is given by the property owner. If it’s private property, as just about ever venue is, they can say no photos and no photographer can argue against it. If it’s public land, everyone if fair game, although there are some more detailed definitions are to what constitutes “public” land, it’s not necessarily just land/property that the public can access. So when Wilco play at The Tivoli and put up signs saying no photos, its no photos (unless you had a media pass) and the venue is within its rights to kick you off their property if you decide to ignore it.

Under law you have limited rights on what can be done with the photos and is dependent on commercial use and non-commercial use. The definitions aren’t going to please a lot of the other people who have commented though. There’s a whole load of examples on the link above but:

A photographer displays photos on their website and offers prints for sale. Non-Commercial — they are merely selling individual photographs, not using the people in them to endorse any product or service.

Art exhibition sells prints or posters or postcards. Non-Commercial — they are not selling anything other than the photo itself. (However it will become a commercial use if the posters are used to entice people to visit the show.)

Photographs are sold for publication inside a book or magazine, but not as part of an ad. — eg. monographs, editorial illustration, celebrity gossip, tutorials, how-to articles etc. Non-Commercial — no release required

I guess successful photography is built on relationships and trust, especially in a small local scene. It doesn’t take long for photographers to develop bad reputations and you could easily become a person non gratus if you abuse your position.

It’s fair enough rule and generally long enough to get enough good photos. Sure you could miss something epic in the rest of the set but you can easily miss something in the first three songs. It’s bad when bands decide to play in the dark for those 3 songs and then turn the lights on for Song 4, which happens way too often and is infuriating. Even worse is when people do that and then give the photographers verbal abuse as they’re leaving the photo pit, Julian Casablancas. I would just prefer that if bands didn’t want to be photographed they’d just say. Dylan hasn’t allowed photographers for 25+ years and I’d prefer an approach like that rather than being treated like the lowest of the low.

Three songs, no flash is also a pain when there’s no photo pit as you have to basically choose a side, claim your place early on and then hope that you chose the “right” side.

Quick question. If you play a gig at local gig at Ric’s/Woodland/The Zoo etc is there a written contract with the venue (or the local promoter) or is it all arranged verbally. If so, are there any clauses related to media?

alexApril 7, 2011 at 3:11 pm

Ed, thanks heaps!

I’ve learned more in the last few days about the role than the last two years.

🙂

Everett TrueApril 8, 2011 at 11:06 am

(from Facebook)

Michael Lavine
The guys that are signing these are digging their own grave and killing the business. That said, eventually your phone camera will be good enough and there will no need for a photo pass, just a ticket will do.

David Bennun
Good stuff. I have lost a significant amount of work by refusing to assign copyright. Fuck it. It’s theft.

AlexApril 9, 2011 at 9:42 am

In reply to Ed’s quick question.

In the last three years I’ve never seen one contract that had anything to do with a local band or local promoter. As far as I’m aware it’s all verbal between band and venue.

And… as far as that goes, I’ve only ever had one local photographer come up to me and ask if it was ok to take photos (and that was at the Step Inn). Every other photographer just goes snap happy if they feel like it and you have to chase them down after your set to find out who they are and who they’re taking photos for. As a musician, most of the time I can’t even be bothered doing that. If a photographer has been given permission to photograph the headliner, then the assumption (from what I’ve seen) is that they assume/expect permission to photograph all supports if they want to.

Even the zoo with their requirement of prior permission, does not ask or inform bands of photographers. They (the zoo) expect the photographer to personally get permission from the local band and then ask the venue.

Everett TrueApril 9, 2011 at 1:17 pm

How about the ones who come up to you afterwards, Alex – give you a card, and ask you to check out their shit online, just in case you might want to buy a few promo shots … ? Someone did that to me at the Zoo recently.

“Um, I think you might be asking the wrong band!”

At least MoshCam offered to let The Thin Kids use all footage free, in return for them putting our songs up on their site.

Bessie SmithMarch 2, 2012 at 3:49 am

I was asked for photograph an arena band for a friend recently and signed one of these things; only realizing it afterwards when a bit of googling was needed due to the promoters coming down heavy on the publication because I filled in for someone else. They didn’t know the other guy from Adam either so I wondered why all the hoo-ha. Now I get it!

I feel a bit duplicitous. On the one hand I’m someone with a semi-pro interest in photography who took the opportunity to photograph at an arena gig like anybody would, but on the other I am bummed out by both the scare mongering and also the fact that I cannot do anything with these photos except get a couple in the online publication. I can’t even use them on my website, which was my main interest. You learn as you go.

Either way my mam was a fan so she can at least get some a4’s on her wall. That’s all that counts right? Unless the big wigs decide to stop for tea..